The ADA, EEOC, and Employers Imposing Health and Safety Requirements
In law and life, precedent is an important guide to making future decisions. COVID-19 being a “novel” virus, leads us to an also novel situation regarding vaccinations. As many people in public and private sector agencies learn more, they can better predict outcomes and make suggestions in good faith, in efforts to reduce and ultimately eliminate the risk of exposure and infection. To expedite the delivery of the best vaccinations known for the novel coronavirus, three pharmaceutical companies were allowed to distribute vaccines under an emergency use authorization. This emergency allowance is an exception to the requirement of approval by the Food and Drug Administration (“FDA”) to offer vaccinations.
While setting aside the emergency use-authorized vaccines, it is generally settled law that employees may be required to submit to certain types of vaccination protocols as a condition to employment. Where that is different in this case, is the settled law came through lawsuits involving FDA-approved drugs, not emergency use-authorized drugs. Why people in different forms of government and business are unsure of what to do, is likely because the law and enforceability of vaccine mandates are unclear because we have never approached the concept of mandating the use of emergency use products.
In this article, we offer additional points of interest for many, and we appreciate that so many we know are affected by these issues one way or another. At Michael V. Favia & Associates, we are here to listen to concerns, offer practical legal options, and represent individuals and organizations needing healthcare attorneys.
Illinois Governor Orders Mandatory Vaccines and Masks for Healthcare Workers
Illinois Governor J.B. Pritzker issued an Executive Order on August 26, 2021, requiring everyone at least two years old, wear masks indoors and at specified places. The order also required by the mandate, that Illinois healthcare employees be COVID-19-vaccinated. This also applies to Illinois education professionals and students, as well as other state employees.
This recent mask and vaccination mandate is similar to requirements in other states and in large cities where many public and private employees and companies believe these mandates are reasonable and necessary as a matter of public health.
Meanwhile, others believe the Governor’s Executive Order exceeds the limit of what is reasonable and necessary to protect the people of the State of Illinois and its employees, and guests visiting from other places. Challenging the validity of mask and vaccination mandates, opponents raise the defense that the vaccines alone, are only emergency use approved.
Licensing: How Do Mask and Vaccine Mandates Affect License Status?
The Illinois Department of Financial and Professional Regulation (“IDFPR”) could be in the position to discipline a licensed professional healthcare worker or other licensees for being legally or formally censured or punished civilly or criminally in connection with health and safety protocols and mandates for COVID-19.
However, it is not expected that the IDFPR would take the position of seeking to punish licensees for non-compliance, and if there would be discipline, it would likely be minor, most likely a written censure and advisory letter. The Department must balance its duty to protect public safety while preserving the number of in-demand high-quality licensed doctors, nurses, and dentists in Illinois. Especially where there are common questions of scrutiny and enforceability of mask and vaccine mandates, the IDFPR may be waiting for further knowledge and information along with other agencies and decision-making bodies.
Can Employers Require Mandatory Vaccines for Employees?
Yes, as settled law, and commonly understood by public and private companies, and departments, employers can legally require employees to comply with health and safety requirements (such as being vaccinated) so long as they are not prohibited by the rights of individuals with disabilities as the Americans with Disabilities Act (“ADA”) defines those rights.
The Equal Employment Opportunity Commission (“EEOC”) also publishes its guidance on employee mandated health and safety protocols, and so far, they believe the COVID-19 vaccine is not a prohibited medical procedure, and if employers require vaccinations, they must use caution in how the process takes place and is communicated and effectuated.
Some urge caution in relying on EEOC publications on COVID-19 thus far because the scope of their statements can be rather limited, leaving many unanswered questions. And only when the process of requiring vaccinations leads to an employee termination or similar lawsuit, we might get more guidance from government agencies and the courts, as to what is allowed and what is prohibited by local, state, and federal laws. The U.S. Supreme Court may be the final arbiter deciding some of the yet-unanswered questions.
Emergency Use Authorization: What Makes COVID-19 Mandatory Vaccinations Unique
As stated earlier, the vaccinations offered by Johnson & Johnson, Moderna, and Pfizer, are allowed by the FDA under emergency use authorization. The vaccines were tested significantly, and results were measured and scrutinized to the satisfaction that according to the FDA they were safe and effective for emergency use. Contrast the quick turnaround time with the three vaccines compared to the many years it can take for other drugs to receive FDA approval on the department’s current standard basis.
Critics of the level of FDA approval, focusing on emergency use, should note that there are recent past lawsuits about defective and dangerous drugs that were pulled from shelves, after originally receiving standard FDA approval. No set standard of approval given by any department can make a drug safe or effective, and sometimes some medical surprises and scientists get things wrong.
Can Employees Refuse to Be Vaccinated Against COVID-19 Even if the Employer Requires It? About Medical and Religious Exemptions
Employers who require vaccinations on their own, or according to a government mandate, regardless of potential legal challenges, often make exemptions available to employees for medical and religious reasons. There are sources of law to address prohibitions of discrimination based on religion in the Civil Rights Act of 1964. The medical reasons for refusing vaccinations are based on ADA laws and policies and further interpreted in the Code of Federal Regulations. Note that even if a medical or religious exemption is allowed, the employee may be offered accommodations including working from home, working isolated in the office, wearing a mask, and submitting to frequent COVID-19 testing.
Employers Can Terminate Employees for Refusing to Get Vaccinated
Illinois is an at-will employment state, and generally, employers can terminate employees at their will, for legally allowed reasons, including refusing to get vaccinated if they are requiring vaccinations as a condition of employment. Whether the termination was wrongful, is another issue that could be the subject of a civil damages suit. When enough employees are suing large employers over vaccination terminations, class action lawsuits are expected, and if they are successful, they can involve large punitive damage awards, which are very costly to employers and their insurers.
Waiting for Lawsuits So the Courts Can Settle Legal Challenges and Issues with Vaccination Requirements
Since COVID-19 shutdowns and mandates were issued, the questions started flying about enforcements and challenges to legal requirements and constitutional scrutiny. And until a mandate by executive order is challenged, the courts do not have the opportunity to weigh in on issues of law and fact. Many private and public entities have determined not to enforce compliance with police power, and therefore the enforceability issue hasn’t yet made it to court.
However, the issues of employer terminations for vaccine non-compliance are more likely to make it to courts before the public worries about being arrested or cited for non-compliance. As more develops with public opinion and consensus with health and safety requirements we remain available to discuss questions and concerns of employers and employees at our healthcare law firm. We are here to help answer your questions and help explain legal rights and options over COVID-19 health protocols, mandates, masks, and vaccination concerns.